Opinion:Dancer v. Dancer, 2022 OK CIV APP 25
Subject matter:Dissolution of Marriage
Date Decided:April 26, 2022
Trial Court:District Court of Payne County
Route to this Court:Petitioner/Appellant/Counter-Appellee, Alison Faith Dancer (Wife), and Respondent/Appellee/Counter-Appellant, Jack Tom Dancer (Husband), both appeal from portions of the trial court’s decree valuing and dividing marital assets and determining separate property.
Facts:Husband took out several loans during the process of contracting and planning the construction of the couple’s house. All mortgage payments, homeowner’s insurance, landscaping costs and home repairs were paid with marital funds. Husband testified he expended personal funds to assist Wife in starting up her medical practice. Wife testified her start-up costs were limited and that marital funds were used to purchase artwork, decorations, equipment, and furniture. Husband’s attorney offered a depreciation schedule on the parties’ 2015 tax return showing depreciation of $164,940.00 related to Wife’s practice. On cross, Wife acknowledged that amount was listed on the depreciation schedule, but denied the depreciated assets were start-up assets. Wife testified she opened her practice in January 1996, and that the depreciated assets were purchased in 1998, 1999, 2001-03, 2012 and 2015.

 In 2013, Wife sought mental health counseling with the reverend at the parties’ church. Wife developed “inappropriate feelings” for the reverend. In February 2015, Wife entered in-patient treatment at The Menninger Clinic in Houston. The parties expended marital funds of $160,400.00 to pay for the medical treatment and Wife’s office expenses. In January 2018, Wife filed a petition for dissolution of marriage. The trial court determined the residence was marital property because several of the mortgages against the property were paid with marital funds, the couple claimed the interest deduction on federal income tax reuters, Wife resided in the home for over twenty years, and Wife was regularly involved in the home’s construction. Husband was awarded 75% of the home’s value, divided other marital assets, and determined that a Wells Fargo Account ending in #4203 was a marital asset which was divided in half between the two.

Wife now appeals from the trial court’s uneven division of the marital home, valuation of the vehicle, the failure to divide the passive growth of the Wells Fargo Account, and the award of $82,470.00 to Husband. Husband counter-appeals from the trial court’s denial of his dissipation of marital assets claim and the determination that the marital home is marital property, conceding that the home is marital property.
Standard of Review:Dissolution of marriage proceedings are of equitable cognizance. Metcalf v. Metcalf, 2020 OK 20, ¶9. The trial court has discretionary power to divide the marital estate and there is a presumption in favor of the trial court’s findings. Id. This Court will not set aside the trial court’s findings unless the trial court abused its discretion or the findings are against the clear weight of the evidence. Id.
Analysis:After reviewing the record, the Court held that the home was Husband’s separate property when the party’s married  Husband purchased the land prior to the marriage in May 1994, and in April 1995, Husband borrowed $270,000.00 from Stillwater Bank under a construction loan agreement. Husband hired an architect, engaged a general contractor and began constructing the home. Thus, the trial court abused its discretion by characterizing the home as a marital home. The Court also found that based on the facts, the home was also encumbered by two loans and therefore there was no equity. The Couple took out various loans to pay off expenses to improve other properties and for other various reasons. Husband’s argument was correct that Wife did not provide evidence that sufficed the Theilenhaus factors, but dissolution of marriage proceedings are equitable. Thus, the marital home issue was remanded to ensure the enhanced value from the marital home is fairly and equitably divided. Wife will also have the opportunity to prove whether any portion of the in-marriage increase in the home’s value was due to the parties’ efforts, funds and skills.

Both sides argued over the cutoff date from which to calculate the value of a bank account, and the trial court is vested with discretion in determining that time for the valuation of marital assets. Based on the facts, the Court determined that the trial court intended to equally divide the Wells Fargo account, but that the intent was not accomplished by the award given of all the post-petition increase to Husband. The record contained no evidence as to the growth in the account was due to just market fluctuations. Therefore, the Court held that the account increase was marital asset’s appreciation was marital property and should have been equally divided between the parties. This issue was remanded to the trial court to equally divide the account after the post-petition appreciation.
The trial court also abused its discretion in awarding Husband $82,470.00. There was no record of how much Husband contributed to the business and the value of Wife’s assets in the business. Oklahoma law does not permit a trial court to reimburse a spouse, dollar for dollar, for his untraceable separate investment into a marital business. A spouse ‘may treat separate property in a manner so that it alters their legal relationship to the property, and it becomes property of the marital estate.'” Gillett v. McKinney, 2019 OK CIV APP 24, ¶17. The Husband did not keep the expenses separate or keep a separate record of the contributions and all records pertaining to it were kept in their account jointly, thus it was marital funds. 

On Husband’s argument for abuse of discretion when the trial court denied his claim for a credit in an amount equal to the marital assets spent by Wife in the mental health treatment facility. However, personal conduct is material only to the extent that it may reflect the existence of that endeavor which contributed to the creation of the marital estate. Husband thus failed to link the mental health expenditure to a purpose unrelated to the marriage or to Wife’s misconduct. Husband also lived with Wife for two years after the treatment, thus signifying he condoned the expenditures for the treatment. Thus, there was no abuse of discretion in that decision.
Outcome:The trial court’s decree is affirmed in part, reversed in part, and remanded for further proceedings.
Vote:3-0. Goree, J., Prince, J. (sitting by designation), and Bell, P.J. concur.
Other: N/A